Tuesday, 26 April 2016

Just over a week ago, Chief Judge Thackray of the Family Court of
Western Australia delivered the Baby Gammy judgment. Or to put it more
accurately, delivered the Baby Pipah judgment.

You
remember the story. Mr Farnell (a convicted sex offender) and his wife
went to Thailand to have a child via surrogacy, and ended up with twins.
During the pregnancy they discovered that the baby boy had Down's
Syndrome and, so the story goes, demanded that the surrogate, now known
as Mrs Chanbua, abort the boy. When the children were born, bay Gammy,
the boy and baby Pipah, the girl, the Farnell's then demanded that the
surrogate keep baby Gammy and they took baby Pipah back to Australia.

The
Farnell's then commenced court proceedings in Australia. Horrified that
Mr Farnell was a convicted sex offender, Mrs Chanbua asked the court
that both Gammy and Pipah live with her in Thailand.

Then in 2015 Mr and Mrs Farnell tried to raid the trust fund set up to protect Baby Gammy- so again the story goes.

Mrs Chanbua was unsuccessful.

Chief
Judge Thackray found that some parts of the story were simply untrue.
It turns out that Mrs Chanbua was underage and falsely put her age up to
be a surrogate. The Farnell's were horrified that Gammy had Down's
syndrome- but part of their shock was that the clinic left it very late
to test. They did not seek Mrs Chanbua to have an abortion. They
couldn't in Thailand. They were told that they could have an abortion in
China- as doctors will doanything for money in China, apparently, but
they did not seek for there to be an abortion in China.

They
did not demand that she keep Gammy. They wanted both children. Instead,
Mrs Chanbua loved the idea that she was having a boy growing inside
her- and wanted the boy. At the time of the children's births, riots
were happening in Bangkok on a daily basis. There was chaos. This was in
the period leading up to the coup. Mr and Mrs Farnell were told to get
out of Thailand for their safety. They fled Thailand, taking Pipah with
them.

Back home they pretened that Gammy had died. The grief was too much to bear.

They
started court proceedings, and said, falsely as too many parents do of
children born from donor genes, that the child was genetically theirs.
In fact, Mr Farnell was genetically the father, but an anonymous egg
donor was the genetic mother. They wanted Pipah to have a "normal"
life.

His Honour also found, in painstaking detail,
that there was no truth to the story that the Farnell's sought to grab
their hands on the loot. Quite simply, they didn't. It was a beat up.

The
result to me was not a surprise. The reason was obvious. Pipah was
living with the only people she knew, in Bunbury, Western Australia,
speaking English, not living with someone she didn't know speaking Thai
in Thailand.

In Bunbury she was likely going to be
protected from the prying eyes of the media. In Thailand she would
probably be the subject of media intrusion as a "celebrity".

In
August/ September 2014 when the Baby Gammy saga burst into view,
Western Australia's child protection authorities, under the full glare
of the world's media camped out on the front lawn, went to the Farnell's
home. Since that time the Department did not take Pipah from the care
of the Farnell's. Their conclusion- counter-intuitively- was that Mr
Farnell was low risk. The judge examined a large amount of evidence and
came to the same conclusion- but with the qualifier that there would be 3
monthly and surprise checkups from authorities with the Farnell's to
help make ensure that Pipah was safe.

The case is an
example of there not being an unacceptable risk. Here there was a risk
to Pipah of being in the Farnell's care, but it was found to be low
risk.

From a legal point of view the case is
interesting because his Honour expressly rejected the doctrine of
intention as to who can be a parent. This runs counter to some other
recent cases in the Family Court. His Honour also found that a provision
of the Family Law Act that said that if a couple underwent IVF (no
matter whose genes were used) or similar procedure they were the parents
did not apply to surrogacy. In other words, the surrogate and her
husband would not be the parents because they never intended to be the
parents. His Honour then relied on State law to determine who were the
parents, but here the woman who gave birth was therefore presumed to be
the parent.

Yes, I am still trying to figure that out.

What
the decision does mean is that the current uncertainty about who is and
who is not a parent under the Family Law Act for those undertaking
surrogacy overseas is even murkier, if that is possible, than before.
His Honour disagreed with a decision in Western Australia by Justice
Crisford in 2013 whereby her Honour found that a gay couple were in
reality the parents of children born overseas through surrogacy. His
view was that decision was incorrectly decided- meaning that those
seeking to rely on the adoption provisions of WA law for their overseas
surrogacy ought to think again.

An unusual feature of
the case was that unlike the usual anonymity, the court revealed the
full details of the case, including the names of the parties and that of
the children. In a sense, how could it have been otherwise? The Baby
Gammy saga had been played out in the world's media. I remember being
interviewed by more media that I could count, including NZ radio, Fuji
TV, Deutsche Well, the New York Times and the Wall Street Journal, as
well as pretty well all of the local media. Quite simply, if his Honour
did not reveal all, then the truth would not have been exposed and there
would have been accusations of a coverup.

Hopefully
for these young children, this will be an end to the media camped out on
their lawns, harassing members of family, all trying to emulate Evelyn
Waugh's Scoop and get the elusive prize for journalism. Hopefully for
these children, they can now lead a normal life.

Just over a week ago, Chief Judge Thackray of the Family Court of
Western Australia delivered the Baby Gammy judgment. Or to put it more
accurately, delivered the Baby Pipah judgment.

You
remember the story. Mr Farnell (a convicted sex offender) and his wife
went to Thailand to have a child via surrogacy, and ended up with twins.
During the pregnancy they discovered that the baby boy had Down's
Syndrome and, so the story goes, demanded that the surrogate, now known
as Mrs Chanbua, abort the boy. When the children were born, bay Gammy,
the boy and baby Pipah, the girl, the Farnell's then demanded that the
surrogate keep baby Gammy and they took baby Pipah back to Australia.

The
Farnell's then commenced court proceedings in Australia. Horrified that
Mr Farnell was a convicted sex offender, Mrs Chanbua asked the court
that both Gammy and Pipah live with her in Thailand.

Then in 2015 Mr and Mrs Farnell tried to raid the trust fund set up to protect Baby Gammy- so again the story goes.

Mrs Chanbua was unsuccessful.

Chief
Judge Thackray found that some parts of the story were simply untrue.
It turns out that Mrs Chanbua was underage and falsely put her age up to
be a surrogate. The Farnell's were horrified that Gammy had Down's
syndrome- but part of their shock was that the clinic left it very late
to test. They did not seek Mrs Chanbua to have an abortion. They
couldn't in Thailand. They were told that they could have an abortion in
China- as doctors will doanything for money in China, apparently, but
they did not seek for there to be an abortion in China.

They
did not demand that she keep Gammy. They wanted both children. Instead,
Mrs Chanbua loved the idea that she was having a boy growing inside
her- and wanted the boy. At the time of the children's births, riots
were happening in Bangkok on a daily basis. There was chaos. This was in
the period leading up to the coup. Mr and Mrs Farnell were told to get
out of Thailand for their safety. They fled Thailand, taking Pipah with
them.

Back home they pretened that Gammy had died. The grief was too much to bear.

They
started court proceedings, and said, falsely as too many parents do of
children born from donor genes, that the child was genetically theirs.
In fact, Mr Farnell was genetically the father, but an anonymous egg
donor was the genetic mother. They wanted Pipah to have a "normal"
life.

His Honour also found, in painstaking detail,
that there was no truth to the story that the Farnell's sought to grab
their hands on the loot. Quite simply, they didn't. It was a beat up.

The
result to me was not a surprise. The reason was obvious. Pipah was
living with the only people she knew, in Bunbury, Western Australia,
speaking English, not living with someone she didn't know speaking Thai
in Thailand.

In Bunbury she was likely going to be
protected from the prying eyes of the media. In Thailand she would
probably be the subject of media intrusion as a "celebrity".

In
August/ September 2014 when the Baby Gammy saga burst into view,
Western Australia's child protection authorities, under the full glare
of the world's media camped out on the front lawn, went to the Farnell's
home. Since that time the Department did not take Pipah from the care
of the Farnell's. Their conclusion- counter-intuitively- was that Mr
Farnell was low risk. The judge examined a large amount of evidence and
came to the same conclusion- but with the qualifier that there would be 3
monthly and surprise checkups from authorities with the Farnell's to
help make ensure that Pipah was safe.

The case is an
example of there not being an unacceptable risk. Here there was a risk
to Pipah of being in the Farnell's care, but it was found to be low
risk.

From a legal point of view the case is
interesting because his Honour expressly rejected the doctrine of
intention as to who can be a parent. This runs counter to some other
recent cases in the Family Court. His Honour also found that a provision
of the Family Law Act that said that if a couple underwent IVF (no
matter whose genes were used) or similar procedure they were the parents
did not apply to surrogacy. In other words, the surrogate and her
husband would not be the parents because they never intended to be the
parents. His Honour then relied on State law to determine who were the
parents, but here the woman who gave birth was therefore presumed to be
the parent.

Yes, I am still trying to figure that out.

What
the decision does mean is that the current uncertainty about who is and
who is not a parent under the Family Law Act for those undertaking
surrogacy overseas is even murkier, if that is possible, than before.
His Honour disagreed with a decision in Western Australia by Justice
Crisford in 2013 whereby her Honour found that a gay couple were in
reality the parents of children born overseas through surrogacy. His
view was that decision was incorrectly decided- meaning that those
seeking to rely on the adoption provisions of WA law for their overseas
surrogacy ought to think again.

An unusual feature of
the case was that unlike the usual anonymity, the court revealed the
full details of the case, including the names of the parties and that of
the children. In a sense, how could it have been otherwise? The Baby
Gammy saga had been played out in the world's media. I remember being
interviewed by more media that I could count, including NZ radio, Fuji
TV, Deutsche Well, the New York Times and the Wall Street Journal, as
well as pretty well all of the local media. Quite simply, if his Honour
did not reveal all, then the truth would not have been exposed and there
would have been accusations of a coverup.

Hopefully
for these young children, this will be an end to the media camped out on
their lawns, harassing members of family, all trying to emulate Evelyn
Waugh's Scoop and get the elusive prize for journalism. Hopefully for
these children, they can now lead a normal life.

I have been contacted by two media organisations who want to broadcast surrogacy stories.

The first media organisation is keen to talk with surrogates who feel that they were not respected in the surrogacy process.

The second media organisation wants to run happy stories about surrogacy- a same sex couple, a married couple doing surrogacy in Australia, and a couple who have gone overseas for surrogacy. The intended parents don't have to be couples, but can be single, too.

If you feel that you want to have your say to the media, please contact me by emailing me or by phoning me on 07 3221 9544 or contact me on my Facebook page. I'll put you in contact with the media organisations.

On Friday I was contacted by members of the media about a story in
which an Australian man had been convicted of offences to do with sexual
abuse and child trafficking of twins. He has undertaken surrogacy in an
Asian country, according to reports, so that he could have children
available to sexually abuse. Disgusting.

When I was
asked by a journalist at The Age about this story, I said that because
of how our laws were structured, Australia was the greatest exporter of
intended parents for surrogacy. I said that I had lost count of the
number of clients who had told me that they would rather go to their
local IVF clinic for surrogacy than overseas, but that because there
were shortages of egg donors and surrogates, and because surrogacy
information was readily available via Google on their phone, many
intended parents went overseas.

I said that we needed
to reform Australia's surrogacy laws. If we paid donors and surrogates,
and had caps on both, we should be able to avoid exploitation here,
along with a strong legal framework. I said that if surrogacy were more
available in Australia, Australians would do it locally than go
overseas. I said that despite the mess we had made of surrogacy laws,
there were real strengths with how we do surrogacy:

pre-signing screening with a counsellor, such as a psychologist

pre-signing independent legal advice

in some States, post-birth assessment by an independent expert

judicial oversight of the whole process.

I
said that with surrogacy arrangements that had gone awry, and that I
have been called in to fix, judges are sensitive to the needs of all
parties: the surrogate, her partner, the intended parents and the child-
and strive to make sure that no one is exploited.

I
said that I was concerned that without reforms, Australians were still
going to go to developing countries for surrogacy and that these types
of scandals were going to continue. I said that I have to stand up
before my international peers and tell them (or be questioned about) the
latest scandal from Australia- and it is very wearing and shameful. I
said that my concern about developing countries is that there weren't
the same legal frameworks for surrogacy as elsewhere, and that the
potential for everyone to be exploited (the surrogate, intended parents,
donor and the child) was there. In fact I had seen cases where everyone
except the doctor and the agent had been exploited.

I
said that in my submissions to the Parliamentary inquiry I had called
for payments to be made to surrogates and donors, for there to be
nationally consistent laws, that it should be easier to undertake
surrogacy for Australian intended parents going to countries that we
think have a good legal framework, such as the US and Canada, but harder
in countries that we have concerns about.

So there is no doubt- I did NOT say that Australia was the greatest exporter of paedophiles for surrogacy.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.